Corpus iurisprudentiae Romanae

1 Paulus, On Sabinus, Book VII. The action having reference to property which has been removed is a peculiar one, and is brought against a woman who was formerly the wife of the plaintiff, for it was not held to be advisable that an action for theft should be brought against her; and certain authorities, like Nerva and Cassius, have thought that she did not commit a theft, because the partnership of married life rendered her, to a certain extent, the owner of the property in question. Others, such as Sabinus and Proculus, hold that she does, in fact, commit a theft, just as a daughter can steal from her father, but that no action for theft is established by law. Julianus very properly adopts this opinion.

2 Gaius, On the Work Entitled, The Edict of the Prætor; Title, Decisions. For, on account of the honor attaching to marriage, an action against the wife implying infamy is refused.

3 Paulus, On Sabinus, Book VII. Therefore, if, after a divorce a woman should appropriate the same property, she will also be liable for theft. 1Moreover, we can bring an action for theft against a woman where her slave has committed the theft. 2It is also possible to bring an action for theft against a woman, if we should become the heir to the party from whom the property was stolen, or if she had stolen from us before we married her. Still, on account of the respect due to persons under such circumstances, in both cases, we hold that only an action for theft to recover the property will lie, and not a penal one based on that offence. 3It is also true, as Ofilius says, that all property which the woman has consumed, sold, donated, or used up in any way whatsoever, at the time of the divorce, should also be included in the suit for property appropriated by her. 4Where a daughter under paternal control fraudulently appropriates property, Mela and Fulcinius say that an action de peculio should be granted, because it was not considered advisable that she should be liable for theft, or that an action should be brought against her on the ground of property wrongfully appropriated. If, however, a father, together with his daughter, brings an action on dowry, an action should not be granted him, unless he gives security to defend his daughter for the entire amount, in a suit for property improperly appropriated. But where the daughter is dead, Proculus says that an action should not be granted against the father, on the ground of property wrongfully appropriated, unless to the extent that he has been pecuniarily benefited by the transaction,

4 Pomponius, On Sabinus, Book XVI. Or where he has been guilty of fraud in order to prevent the property from coming into his possession.

5 Papinianus, Questions, Book XI. All equitable actions to recover property wrongfully appropriated, which has come into his hands, can be brought against the father even during the lifetime of his daughter.

6 Paulus, On Sabinus, Book VII. Atilicinus and Fulcinius say that this action can be granted to a father-in-law against his daughter-in-law. 1Whenever a dowry is given to a son under paternal control, the father-in-law cannot bring an action for theft, where property has been appropriated by reason of a divorce. 2This action for property wrongfully appropriated is also granted against the husband if he is a son under paternal control, but shall such an action be granted directly against him, or merely with reference to the peculium? We repeat here the same rule which we have already stated applies to a daughter under paternal control. 3If the husband should die after the divorce, his heir can bring the action for the recovery of property fraudulently appropriated. 4The heir of the woman is also liable in an action of this kind, just as he would be in one for the recovery of stolen property. 5Where the marriage is dissolved by the death of the husband, his heir can recover the property either by an action for the partition of the estate, or by one for its production in court. Aristo thinks very properly that he can bring a personal action for restitution against the woman, because the property is unjustly in her possession. 6Where a woman appropriates property after the death of her husband, she does not commit theft, because a theft of property belonging to an estate which is not yet in the possession of anyone cannot be committed; and therefore the heir can bring suit to recover the property, or can file a petition claiming the estate.

7 Ulpianus, On Sabinus, Book XXXVI. A wife is entitled to an action against her husband for the recovery of property fraudulently appropriated, and she can set off the claim in her action against that made by the husband, where he brings suit for the same cause.

8 Pomponius, On Sabinus, Book XVI. If, when the dowry is paid to the wife or security is given to insure its payment, it should not be stated that the husband shall have a right to bring an action for the recovery of property wrongfully appropriated, he can, nevertheless, bring such an action; for he has a right to do so even where there is no dowry to be returned. 1Sabinus says that if a wife does not return the property which she has wrongfully appropriated, judgment shall be rendered against her for the amount which her husband will swear to in court.

9 Paulus, On the Edict, Book LVII. For it is not just that the husband should be compelled to sell his own property, even for its full value, if he is unwilling to do so.

10 Pomponius, On Sabinus, Book XXXVI. Therefore, he should not be obliged to furnish any guarantee against eviction, because the affair took place through the obstinacy of his wife.

11 Ulpianus, On the Edict, Book XXXIII. Marcellus stated in the Eighth Book of the Digest that whether a husband drove his wife, or a wife her husband, from the house, and removed the property, either would be liable to an action for the recovery of property wrongfully appropriated. 1Where anyone institutes proceedings for the recovery of property wrongfully appropriated, if he prefers to tender an oath, his adversary will be compelled to swear that nothing was appropriated at the time of the divorce; provided whoever tenders the oath himself or herself first takes the oath de calumnia. 2The husband, as well as the wife, is compelled to take the oath with reference to property wrongfully appropriated. But the father of him or her who appropriated the property is not obliged to be sworn, as it would be unjust for anyone to take an oath relating to the act of another. That party, therefore, is compelled to take the oath who is said to have appropriated the property, and hence the heir of him or her who is said to have wrongfully appropriated it is not compelled to be sworn. 3Where anyone desires to tender back the oath which has been tendered him, it has been decided that the Prætor shall not permit this to be done.

12 Paulus, Abridgments, Book VII. Any more than where someone tenders an oath to a party whom he is suing to recover stolen property, in order to ascertain whether he himself is the thief.

13 Ulpianus, On the Edict, Book XXXIII. Therefore, Labeo states that a woman is not permitted to tender back an oath; and the Edict of the Prætor is held to establish this.

14 Paulus, On the Edict, Book XXVIII. In an action for the recovery of property which has been wrongfully appropriated, the husband or the wife shall be permitted to tender the oath with reference to certain property, and to confirm what has been testified to with reference to any other.

15 Ulpianus, On the Edict, Book III. In a case of this kind it makes no difference whether the parties are living together or separately; since an action for property wrongfully appropriated can even be brought against a woman who has taken it into a house in which she is not living with her husband. 1A wife, a daughter-in-law, or the wife of a grandson can steal from her husband, her father-in-law, and the grandfather of her husband, but still she will not be liable for theft unless the son is not emancipated; for, in this instance, the daughter-in-law commits a theft against her father-in-law, and is liable to an action for theft.

16 Hermogenianus, Epitomes of Law, Book II. Where the property of a husband is confiscated, the wife can only be sued for the simple value of what has been unlawfully appropriated; although, in all other cases, judgment can be rendered against her for fourfold damages.

17 Ulpianus, On the Edict, Book XXX. Where a concubine wrongfully appropriates property, it is the practice to hold her liable for theft. Consequently, we say that whenever a marriage is void, as, for instance, where a ward marries her guardian, or where matrimony is contracted, contrary to the laws, and in any other case where it is not valid, the action to recover property wrongfully appropriated will not lie, for the reason that it can only be brought where a divorce takes place. 1When we speak of property wrongfully appropriated, we have reference not only to that which the woman removes when she forms the intention of obtaining a divorce, but also to such as she removes while she is still married, if, when she leaves her husband, she conceals the property. 2Julianus says that not only property which is in existence is included in a suit for wrongful appropriation, but also such as has already ceased to exist. He says that, under these circumstances, a personal action can also be brought for its recovery. 3Where a woman wrongfully appropriates property which has been given in pledge to her husband, she will be liable to this action.

18 Paulus, Questions, Book VI. A personal action for the recovery of such property will also lie in favor of the owner of the same, but he is allowed to choose whether he will bring this, or a real action.

19 Ulpianus, On the Edict, Book XXXIV. If a woman, at the time of the divorce, introduces thieves into the house of her husband, and removes property by their agency, even if she herself does not handle it, she will be liable to an action for its wrongful appropriation. It is therefore true, as Labeo states, that a wife is liable to this action, even if the property does not come into her possession.

20 Marcellus, Digest, Book VII. Where a wife herself removes, or makes use of the services of the thief to remove property which her husband purchased in good faith, and does this with the intention of obtaining a divorce, judgment shall be rendered against her in an action for the recovery of property wrongfully appropriated.

21 Paulus, On the Edict, Book XXXVII. If a woman, despairing of the life of her husband, after having surreptitiously removed some of his property, should obtain a divorce, and her husband should recover, an equitable action for the recovery of property wrongfully appropriated should be granted him. 1Where a slave belonging to a wife removes property of her husband by order of his mistress who intends to obtain a divorce, Pedius thinks that she is not guilty of theft, since she does not obtain anything to his own advantage; nor is she held to have rendered any aid to the slave committing the offence, as the woman herself did not commit it, although the slave should not obey his owner when ordered to commit a crime; but an action on the ground of property wrongfully appropriated will lie. 2Still, if a slave given as dowry steals from the husband, and the wife knew that he was dishonest, she must make good the entire loss to her husband; but if she was not aware of the bad character of the slave, she will then not be liable beyond the surrender of the slave by way of reparation. 3The action to recover property wrongfully appropriated is brought for reparation of the injury, even though the exaction of the dowry can only subsequently be demanded. 4If, where property has been wrongfully appropriated by his wife, the husband has been deprived of some advantage, this must be taken into consideration. 5Although this action arises from the commission of a crime, it still includes the claim for the property, and therefore is not prescribed after the expiration of a year, as is the case in a personal action for the recovery of stolen goods. Moreover, it will lie in favor of heirs. 6In this action, neither the husband nor the wife can obtain any benefit from insolvency, because it is based upon theft.

22 Julianus, Digest, Book XIX. If a man brings an action against his wife on the ground of property wrongfully appropriated by her, and the valuation of the same is made in court, and the amount is paid, will she be entitled to bring suit to recover possession of the property, if she has lost it? A difficulty arises here, because she obtained possession by fraud. I answered that where anyone pays the amount of the appraisement of the property in court, he should be considered to occupy the position of a purchaser. Therefore, if the woman, against whom an action has been brought on the ground of property wrongfully appropriated, pays the appraised value of the same in court, she will be entitled to an exception against the husband, or his heir, if either should bring suit to recover the said property; and if she has lost possession of the same, a real action should be granted her. 1Where a woman wrongfully appropriated property in anticipation of the death of her husband, and he then dies, the heir can recover whatever had been appropriated by an action for the estate, or by one for the production of property in court.

23 Africanus, Questions, Book VIII. Where marriage is re-established after a second divorce has taken place, it is held that a right of action continues to exist on account of property appropriated at the time of the first divorce, as well as on account of expenses incurred or donations made during the previous marriage.

24 Ulpianus, Rules, Book V. The husband is entitled to an action for recovery as well as the personal action against his wife on the ground of property wrongfully appropriated by her, whether it belongs to him or is included in the dowry; and it is in his power to make use of whichever action he chooses.

25 Marcianus, Rules, Book III. The action for property wrongfully appropriated is available where it was removed with the intention of obtaining a divorce, and the divorce actually followed; but if the wife appropriates the property of her husband during marriage, although this action will not lie, the husband can, nevertheless, bring a personal action to recover the said property; for, in accordance with the Law of Nations, I hold that property can always be recovered by a personal action from parties who hold possession of it unjustly.

26 Gaius, On the Provincial Edict, Book IV. The action for property wrongfully appropriated is a personal one.

27 Papinianus, Opinions, Book IV. The action for property wrongfully appropriated does not differ from that in which the woman is accused of the crime of adultery.

28 Paulus, Questions, Book VI. Where a wife steals property belonging to her husband from a person to whom the former lent it, the latter will be entitled to an action for theft against her, although her husband can not bring such an action.

29 Tryphoninus, Disputations, Book XI. The valuation of property wrongfully appropriated should be calculated with reference to the time when it was taken, for the woman is in reality guilty of theft, although she is punished with more leniency. For this reason property thus wrongfully appropriated cannot be acquired through usucaption by a bona fide possessor; but where it increases in value and is not returned, the appraisement will also be increased; as is the case in an action for the recovery of stolen property.

30 Papinianus, Questions, Book XI. Where an action is brought against a woman on the ground of property wrongfully appropriated after the marriage has been dissolved, the action is extinguished in case the marriage should be re-established.